Citation Nr: 9912479
Decision Date: 05/06/99 Archive Date: 05/12/99
DOCKET NO. 96-50 489 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for chronic hepatitis C.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had active service from January 1967 to March
1970. This matter came before the Board of Veterans' Appeals
(Board) on appeal from a December 1992 rating decision of the
St. Petersburg, Florida, Regional Office (RO) which, in
pertinent part, denied service connection for "hepatitis C
antibody positive." In July 1993, the veteran was afforded
a hearing before a Department of Veterans Affairs (VA)
hearing officer. In March 1994, the veteran was afforded an
additional hearing before a VA hearing officer. In April
1997, the Board remanded the veteran's claim to the RO so
that he could be scheduled for a hearing before a Member of
the Board sitting at the RO.
In September 1997, the veteran was afforded a hearing before
the undersigned Member of the Board sitting at the RO. In
January 1998, the Board remanded the veteran's claim to the
RO. The veteran is represented in the instant appeal by the
Veterans of Foreign Wars of the United States.
FINDING OF FACT
Chronic hepatitis C has been shown to have originated during
wartime service.
CONCLUSION OF LAW
Chronic hepatitis C was incurred in wartime service. 38
U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(d)
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
This case was remanded in 1998. The Board posed two clear
questions to a medical professional. The examiner did not
comply. There is no indication that the examiner is willing
to cooperate. Despite a phenomenal Stegall violation, the
Board shall proceed. The case is well grounded. The veteran
has a disability that has been attributed to service. The
duty to assist has been frustrated.
Service connection may be granted for chronic disability
arising from disease or injury incurred in or aggravated by
wartime service. 38 U.S.C.A. § 1110 (West 1991). Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (1998).
The veteran's service medical records make no reference to
hepatitis C or any other form of hepatitis. At his January
1970 physical examination for service separation, the veteran
denied both having ever experienced jaundice and a history of
"an drug or narcotic habit." On examination, the veteran
exhibited a normal abdomen and viscera. The service clinical
documentation does indicate that the veteran sustained shell
fragment wounds to the right leg and the buttocks in
September 1968 during combat in the Republic of Vietnam. The
veteran's wounds necessitated multiple surgical procedures
and blood transfusions in September and October 1968.
A December 1971 written statement from the Texas Department
of Corrections conveys that the veteran was incarcerated in
the Bell County, Texas, Jail and a Texas state penal
institution on September 24, 1971 to serve an eight year
sentence. An April 1971 written statement from [redacted]
[redacted] relates that she was a friend of the veteran's family.
She clarified that the veteran was serving a sentence in a
Texas prison for "pushing narcotics." A July 1985 letter
from the RO to the veteran conveys that it had been informed
of the veteran's incarceration in a federal prison for two
and one-half years and his current parole status.
A February 1986 VA hospital summary notes that the veteran
was admitted for treatment of second degree burns to the face
and the right upper extremity and a left eye corneal
abrasion. Treating VA medical personnel observed that the
veteran's "admission laboratory data was unremarkable."
In a July 1989 written statement, the veteran advanced that:
Claim that through drinking water in
Vietnam made me sick for 4 days in mid
68. I almost got hospitalized. I
could't (sic) eat, every thing comming
(sic) up ect (sic). I. I believe my
liver was infected. (Emphasis in the
original).
At an August 1989 VA psychiatric examination for compensation
purposes, the VA examiner commented that the veteran
"readily admits to also drinking and having used some
marijuana in the past; however, he is extremely vague
regarding his use and/or abuse of alcohol and substances."
The veteran was diagnosed with post-traumatic stress disorder
(PTSD) and "alcohol and substance abuse and dependence with
evidence of possible antisocial traits."
At a March 1990 hearing before a VA hearing officer, the
veteran testified that he "very seldom" used alcohol and
denied taking any drugs except for prescribed medication. VA
clinical documentation dated in July 1990 conveys that the
veteran desired to be tested for acquired immune deficiency
syndrome and hepatitis. The treating VA medical personnel
observed that the veteran wanted to be tested due to his
"multiple female partners."
A February 1992 VA treatment record notes that the veteran
complained that he always had "drug use in my head." He
reported that he was "on probation from house arrest now
[secondary to marijuana] arrest." He related that he had
"used most all drugs incl[uding intervenous heroin] and had
done a methadone program some years ago." The treating VA
medical personnel commented that the veteran "meets
DSM-III-R criteria for polysubstance abuse from [marijuana]
dependency."
VA clinical documentation dated in July, August, and
September 1992 shows that the veteran was afforded diagnostic
liver function tests. He reported a history of prior blood
transfusions and hepatitis A, B, and C. The veteran denied a
history of either homosexual activity or intervenous drug
use. Examining VA medical personnel reported that the
veteran exhibited elevated liver function tests. A VA
physician noted that:
[The veteran had a history of] hepatitis
A, B, [and] C believed [secondary] to [a]
transfusion [that] he received in [the]
1960's while in Vietnam. Denies any
sig[ificant prior medical history except
for] mult[iple] admissions for traumatic
injuries and burns. Reports episodic
[alcohol] intake and 16 y[ea]r smoking
habit and no known exposures to hepatitis
otherwise.
A September 1992 VA gastrointestinal evaluation reflects that
the veteran was referred for a liver biopsy and treatment of
hepatitis. He reported a history of both prior blood
transfusions secondary to his inservice shell fragment wounds
and alcohol abuse. The veteran's clinical history was noted
to include evidence of increased liver function tests since
1990 and hepatitis A and B antibodies. The VA physician
advanced impressions of "chronic liver d[isease]," a
[history] of hep[atitis] A, B, and C," and "[alcohol]
abuse."
In his October 1992 informal claim for service connection,
the veteran stated that he had been given blood transfusions
in October and November 1968. He was subsequently diagnosed
with hepatitis C by the physicians at the Tampa, Florida, VA
Medical Center in 1992. He advanced that "I was informed by
the doctor at the VA hospital in Tampa, Florida that [the
blood transfusions were] the only possible cause of my
condition."
A January 1993 VA hospital summary indicates that the veteran
underwent a liver biopsy. The veteran's history of a 1969
blood transfusion; intervenous drug use; increased liver
function tests since 1990; and diagnostic findings consistent
with hepatitis A, B, and C was noted. At the time of his
discharge from the hospital, the veteran's liver biopsy
results had not been received. VA clinical documentation
dated in February 1993 reflects that the liver biopsy
revealed findings consistent with chronic active hepatitis.
A June 1993 written statement from a VA physician conveys
that the veteran "has chronic active hepatitis secondary to
hepatitis C probably obtained from blood transfusions [in
the] 1960's." A July 1993 written statement from a Tampa,
Florida, Vet Center readjustment counseling therapist
reflects that the veteran had been treated at the Vet Center
since April 1986. The therapist related that: The veteran
informed him that on February 11, 1992, he was interviewed by
a counselor at the Tampa VA Medical Center/Substance Abuse
Inpatient Program for possible admission. He was strongly
encouraged by the legal system to enter into drug treatment
and subsequently falsely reported being an IV drug user.
There is no record of this veteran having ever being an IV
drug user.
A July 1993 written statement from [redacted] conveys
that he had known the veteran since the 1960's. He stated
that "I know for a fact that he has never been a hard drug
or needles (sic)." A July 1993 written statement from [redacted]
[redacted], notes that he had known the veteran for over eight
years. He stated that he had "seen [the veteran] drink[,]
but never use any drugs." An undated statement from [redacted]
[redacted] reports that he had known the veteran for thirteen
years. Mr. [redacted] advanced that he was unaware of the veteran
having "abused drugs involving needles or such hard drugs."
An undated statement from the veteran's father conveys that:
He has never taken any hard drugs or
needles with drugs. He always worked
construction or office work while living
in Michigan. I know that he drinks a
little and smoke (sic) a little weed, but
never any thing else.
An undated written statement from [redacted] notes that
she had known the veteran for eight years. She advanced that
"within those 8 years, I have never known [the veteran] to
be involved in any type of [intervenous] or other drug use."
At the July 1993 hearing on appeal, the veteran testified
that he underwent three blood transfusions during active
service. He stated that he had initially experienced sharp
pains in his right side in approximately 1971. He was
diagnosed with hepatitis in January 1993. He advanced that a
VA physician had informed him that his hepatitis was caused
by his inservice blood transfusions. The veteran
acknowledged using alcohol and marijuana. He denied using
any intervenous drugs. He related that he had falsely told
VA medical personnel that he used intervenous drugs in order
to gain admission to a VA treatment program and thus avoid
punishment for a criminal offense. He noted that he did not
participate in the VA treatment program and acquiesced to the
judge's sentence of "community control."
An October 1993 written statement from a Florida State
correctional probation officer relates that, "in reference
to [the veteran's] legal problems stemming from 1969 to
present, there is no documented history of [intervenous] drug
usage." In an October 20, 1993 written statement, the
veteran averred that "I have never been [an intervenous]
drug abuser/user." He acknowledged using marijuana and
alcohol.
The veteran reiterated that VA physicians had conveyed to him
that his chronic active hepatitis was "probably obtained"
from his inservice blood transfusions."
At the March 1994 hearing on appeal, the veteran testified
that he had received blood transfusions during active service
and denied receiving any further transfusions following
service separation. He stated that he had incurred hepatitis
A while in Vietnam secondary to his consumption of impure
drinking water. The veteran reported that he had been in
prison or on probation for "most of the time" since his
discharge from active service. He clarified that he was in
prison from 1971 to 1974 in Texas for a marijuana-related
offense; from 1983 to 1985 at a federal prison; and again in
1986, 1987, or 1991 in Florida. While on probation following
his release from prison, the veteran was periodically tested
for intervenous drug use by his probation officers in light
of his drug-related criminal record. He stated that he was
"never caught dirty." He acknowledged that he had falsely
conveyed to VA medical personnel that he had used drugs in
order to obtain admission to a treatment/counseling program.
He advanced that he sought admission to the VA program in
order to gain a more lenient sentence in a criminal matter.
The veteran related that:
[T]he judge gave me an option ... either go
into probation or go on house arrest.
She said go get in the program and I said
I don't think that I need help. So she
said old (sic) yeah I give you house
arrest. So house arrest to like two
months. So I went down and get on (sic)
the program and they told me down there
you're not going to get on the program
unless you got a problem. You know, I
told them I'm only a marijuana user and I
was. ... [Indecipherable] sufficient to
that, so I had to say something to them.
And I never went any way.
The veteran emphasized that the purpose of his false
statement as to his use of intervenous drugs was "to get in
there to go back to the judge and be on probation instead of
a house arrest." He asserted that he believed that "they
can tell an [intervenous] drug user[,] ... I mean you got marks
all over you[,] you know ... they can tell right away."
At an April 1995 VA psychiatric examination for compensation
purposes, the veteran reported ongoing alcohol and marijuana
abuse. The VA examiner commented that the veteran "does
have hepatitis C because of his alcohol use apparently
(sic)." The veteran was diagnosed with polysubstance abuse,
marijuana abuse, alcohol abuse, and hepatitis C. A May 1997
VA treatment record notes that the veteran denied a history
of intervenous drug abuse.
At the September 1997 hearing before the undersigned Member
of the Board, the veteran reiterated that he did not have a
history of intervenous drug abuse and had falsely reported
intervenous drug use to VA medical personnel in order to gain
admission to a VA treatment program.
At a March 1998 VA examination for compensation purposes, the
veteran advanced that he sustained hepatitis C secondary to
inservice blood transfusions. The veteran was diagnosed with
chronic active hepatitis C. The VA physician commented that:
Reviewing [the veteran's claims file],
which I have done extensively, he admits
that he used marijuana in the past. He,
however, does deny any [intervenous] drug
abuse whatsoever in his life. He notes
that because of his marijuana use[,] he
has been unjustly deemed responsible for
his having acquired hepatitis C, though
without any history of [intervenous] drug
abuse, he is unsure how he can be blamed
for this.
***
I feel that most likely this patient
acquired his hepatitis C infection by the
blood transfusion route during his time
in Vietnam in 1968. While he admits that
he used marijuana in the past, this is
certainly not an [intervenous] drug and
is not a conduit for obtaining hepatitis
C virus. Certainly, he does have a
history of alcohol abuse in the past,
which may have accelerated some of the
damage to his liver with the hepatitis C,
but it sounds like he has been fairly
compliant with abstaining from alcohol
over the last several years in compliance
with the recommendation from other
physicians. Again, hepatitis C cannot be
contracted through alcohol use or
marijuana use by the smoking route. It
must be acquired through a blood-borne
route and the only blood exposures that
he is aware of and makes known to me is
that of blood transfusions acquired back
during his time in service.
In a May 1998 addendum to the report of the March 1998 VA
examination for compensation purposes, the VA examiner
conveyed that:
[Hepatitis C virus] cannot be contracted
[with alcohol,] but [intervenous] drug
abuse is a likely route of infection.
[The veteran] denies [intervenous] drug
abuse, but it is documented in his
records otherwise.
In his December 1998 written presentation, the national
accredited representative advances that the record contains
medical statements establishing that the veteran's chronic
hepatitis C was probably sustained as a result of his
inservice blood transfusions. He notes that there is no
objective evidence of the veteran's alleged intervenous drug
use. He asserted that "the only evidence of record that the
veteran was an [intervenous] drug user was self-serving
statements made by him to gain admittance to a VA treatment
program."
The Board has reviewed the probative evidence of record
including the veteran's testimony and statements on appeal.
The veteran has been diagnosed with chronic active hepatitis
C. Examining VA physicians have attributed the veteran's
chronic active hepatitis C to his inservice blood
transfusions. The examiner at the March 1998 VA examination
for compensation purposes of record concluded that it was
"most likely this patient acquired his hepatitis C infection
by the blood transfusion." In the May 1998 addendum to the
report of the March 1998 VA examination for compensation
purposes, the VA physician stated generally that while the
hepatitis C virus cannot be contracted through alcohol abuse,
intervenous drug abuse is a likely route for such infection.
The doctor acknowledged that while the veteran denied
intervenous drug use, he did have a documented history of
intervenous drug abuse. The doctor did not affirmatively
state that the veteran's hepatitis C infection was
precipitated by his documented history of intervenous drug
use.
The record is devoid of competent evidence establishing an
etiological relationship between the veteran's alleged
intervenous drug abuse and the onset of his chronic hepatitis
C. The United States Court of Veterans Appeals (Court) has
direct that the Board must point to a medical basis other
than its own unsubstantiated opinion when resolving issues
raised by a veteran's appeal. Colvin v. Derwinski, 1 Vet.
App. 174, 175 (1991). Given these facts and in light of the
VA physicians' statements establishing an etiological
relationship between the veteran's inservice blood
transfusions and his post-service manifestation of chronic
hepatitis C, the Board concludes that service connection for
the claimed disorder is warranted. We again note that the
examiner failed to attribute this veteran's hepatitis C to
drug abuse. Since the RO determined that there was adequate
compliance with the Remand, the Board has decided the case on
the record.
ORDER
Service connection for chronic hepatitis C is granted.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals